Unintended But Not Unanticipated Outcomes From Law Enforcement Policy and Practices
Law enforcement executives and elected officials are not as dissimilar as many would believe, as the law enforcement executive role is largely political. Both can be moved by public pressure in alarming and unthinking ways. In law enforcement, knee-jerk reactions lead to changes in departmental policies and in politics to legislation. These changes can make for great sound bites but poor public policy. Quick fixes are marked by unintended and unanticipated consequences. Too often, officers are punished for being involved in rare but predictable events. These events are marked by poor outcomes which result from the inability to learn from or ignoring the training or equipment issues which lend themselves, over time, to errors in application. Instead of addressing causation, new policies are implemented that broaden punitive parameters. Instead of educating the public about practices, a rush to quell public outcry may lead to implementation of new rules/requirements for law enforcement even before those crafting the policies understand how those rules and requirements will work as a practical matter.
Worse, policies and practices are often imprecise and open for divergent interpretations. Any ambiguity and impracticality result in decreased engagement by law enforcement at a time when more engagement is critical. As importantly, poor policing outcomes which are unintended—but should be anticipated—are often assigned a motivation that is not supported by the facts. The involved officers become the focus of blame by politicians and are often not defended by policing executives. In this way, the likelihood of similarly poor outcomes, albeit statistically rare, are repeated over time.In a recent example, a 26-year veteran used commands associated with Taser deployment before firing a single round—which suggests that the officer’s intention was to use a Taser. However, the officer fired their handgun, not a Taser, and this error produced a devastating outcome. Immediately, the public and politicians attributed a moral dimension to the act and the officer, fueled by a belief that highly skilled or trained people do not make these types of errors—that this type of event just does not, or should not, happen. This response is common to poor outcomes; the truth, however, is that most errors take “recurrent and predictable forms.”[i]
Such seems to be the case with the mistaken use of a firearm instead of a CEW by an officer. There are at least 16 examples of that same dynamic taking place since 2001.[ii] While this occurrence is unlikely, given a large enough sample size and the ability to collect the information, these events become less “chance” and more predictable events.[iii] The only true unknown becomes when and where it will happen next.
As such, it begs the question: “How can we better stop it from happening in the future?” Better training? Or something as simple as changing the shape and firing mechanism of the CEW? If a Taser were shaped like a metal detection wand or a television remote control, instead of configured like a handgun, even under stress an officer would know immediately that they were holding different devices. To the point: the author is unaware of any unintentional uses of a firearm when an officer intended to deploy OC Spray or use a baton. Where is law enforcement leadership on this matter? Why do officers carry a device intended to incapacitate someone which is designed like a handgun? When do agencies look further back at what precipitates this type of event? Do officers regularly train in multi-force option decision making and transitioning between weapon systems in real time? Could a CEW be configured differently and thereby prevent these (admittedly) rare but tragic events?
Policy changes made in the aftermath of emotional events can also lead to poor or unintended outcomes for society. Ambiguous or imprecise law enforcement policy, especially in a use of force context, can create a chilling effect on community interactions by making officers unwilling or hesitant to interact with the public. In turn, less officer engagement can dramatically impact community safety, especially when officers avoid situations that may result in a use of force. Policy which makes the officer's actions subject to endless scrutiny, argument, and examination which might result in discipline or charges becomes a threat to an officer's livelihood and well-being—the foreseeable outcome of which is less officer engagement. In turn, society is less safe from criminal events. Anyone who has played a sport knows that if a player does not understand the rules, that player becomes hesitant, reactive, and disengaged.
Use of force policies become problematic with verbiage such as, “Officers shall only use force when no other viable option is available and non-physical options are not viable or have been exhausted,” The likelihood that an officer can identify every viable option during a tense interaction day after day—or even in one engagement—defies the human condition.as a person’s ability to receive, process, and act on information is limited by where a person is focusing their attention.[iv] An officer would have to be superhuman to perceive all available sensory information, interpret the implications of it, decide how to proceed, and then act before any other potentially viable options emerge. A person will respond to sensory information that the person believes is important at the time and not what may actually be important at the time.[v] This can result in officer behaviors being driven by an errant perception of what was happening and expose that officer to punitive action.
Further, selective attention suppresses information outside of its focus[vi]—information that may be more relevant to the problem at hand. This is how professional quarterbacks, who train exponentially more than police officers in motor skill development and decision making, throw interceptions. They do not see the opposing player or misread the defense or misinterpret what the defense is showing which results in a poor outcome—a turnover. Where we focus our attention is a function of experience, which includes training. This is as true in the sports world as it is in policing encounters. It is inevitable over time that there will be cases where the most useful information will be missed or will be misinterpreted.
If we have limited attentional capacity, it would be impossible to identify every “viable option” to conclude that all the options have been exhausted, especially during novel encounters or encounters that are tense, uncertain, and rapidly evolving. The use of the word “viable,” coupled with the directive “shall,” begs to be examined in hindsight and most certainly will be. At what point are non-physical options “exhausted?” This type of policy is a subjective review of the application of force, and one can easily argue that every use of force can be outside of policy. Attorneys go to school and are specifically trained to find or develop alternative theories which are beneficial to their clients. This type of use of force language provides them with endless possibilities. It also does not provide officers with meaningful guidance, other than to promote hesitation or avoidance of interactions altogether. Any police officer knows that, at times, using lesser force earlier in an event can prevent the need for greater levels of force later. They also know that the outcome of an event often directs disciplinary action, rather than an officer’s behaviors. This type of language could be misused in just such a way.
Another example of problematic verbiage might read: “In all cases where force is used, only the minimal degree of force which is necessary to overcome resistance shall be used.” How does anyone know what the minimal amount of force to overcome resistance is in the moment? Or even in retrospect? Do we start parsing the degree of force used to apply a technique? Force in this context can also mean the strength or energy applied. Is an officer required to incrementally increase force until control is established or the safety threat resolved? Wouldn’t that dramatically escalate a subject’s response to the officer? Determining a minimum level of force in hindsight is nearly impossible.
As an example, during the application of an unbalancing technique, the more proper the technique, the less force is necessary. Unfortunately, police are rarely efficient or expert at applying the techniques they have been taught. To counter the lack of skill, or in an emotionally heightened state, more physical force is used. This compensation can be catastrophic if the officer performs (inadvertently) the technique exactly right and may result in significant injury to the suspect.
This “minimal degree” or “minimum force” standard requires a subjective review of the application of force. Context matters and violent confrontations do not lend themselves to trial-and-error energy/force commitments without creating a greater likelihood of the need for more force later. This language creates an environment where outcomes drive force analysis, rather than having an analysis based on the circumstances facing an officer. Such language would lead to less officer engagement and more mistrust of the process by officers. Any football tackle could be endlessly argued if a new rule required the minimum degree of force be used to bring a runner to the ground. Football is replete with examples of force and decision-making errors—which have the same dynamics as police uses of force—that result from the human condition and are absent malice. Indeed, the targeting penalty has come under increased scrutiny because players are ejected even while broadcasters discuss and scrutinize divergent interpretations of the rule, the behaviors of players leading up to the call, and how these interpretations can influence the outcome of a game.
Finally, the above commentary on “minimal force” is also applicable to the “necessary force” determination. It is also important to note that the inclusion of Graham language, which is often found in these same policies, ignores the assertion in Graham that "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers violates the Fourth Amendment.”[vii] The words “minimal” and “necessary” are synonymous for the purpose of analysis pursuant to this type of policy, which again, requires a subjective review of the application of force, as a finding of greater force than “minimal” would make that extra force unnecessary.
Quick-fixes and stop-gap measures are certainly nothing new under the sun, but it is a dangerous practice to initiate policy changes and legislation that are readily predisposed to promoting adverse consequences. Indeed, unintended consequences are not necessarily unanticipated. In the police policy realm, policies which are ambiguous and arguably impossible to comply with will result in de-policing, to include the areas that need the police the most. Legislative attempts at curbing the disparate impact of policing need to be carefully thought through and necessitates consultation with those that understand the practical results of that legislation—those who must implement and abide by it. While policy and legislative fixes are understandable, and in some cases necessary, a haphazard approach harms society generally. Statutes and department policies which make everyone less safe or create further harm to the communities that they are intended to protect further erodes confidence in law enforcement and government more broadly.
About the Author
Lieutenant Brian N. O’Donnell is a veteran of the United States Marine Corps and a 25-year veteran of law enforcement with the Charlottesville Police Department in Charlottesville, Virginia. He has a B.A. in economics from Northwestern University and an M.S. in Criminal Justice from Liberty University. He is a 2016 graduate of the University of Virginia’s National Criminal Justice Command College and earned the Advanced Specialist designation by the Force Science Institute in 2018. He has researched, developed, and provided training to local, state, and federal law enforcement partners, as well as to attorneys and educators. O’Donnell became an IADLEST National Certified Instructor in 2020.
Lieutenant O’Donnell has worked in patrol, as a SWAT member, as a detective with a regional narcotics task force, and as a full-time task force officer with the FBI’s Joint Terrorism Task Force. He has been a supervisor as a patrol Sergeant, Patrol Shift Commander, and as the Commander of the Strategic Policing Bureau.
[i] Reason, J. T. (2008). The human contribution: Unsafe acts, accidents and heroic recoveries. Ashgate Publishing. p.37
[ii] Ciavaglia, J. (2021, April 13). How could a gun be mistaken for a taser? There have been at least 16 incidents of 'weapon confusion' since 2001. USA TODAY https://www.usatoday.com/story/news/investigations/2021/04/13/taser-confusion-errors-like-daunte-wright-shooting-rare-but-avoidable/7210538002/
[iii] Peterson, I. (1998). The jungles of randomness: A mathematical safari. John Wiley & Sons.
[iv] Evans, K. K., Horowitz, T. S., Howe, P., Pedersini, R., Reijnen, E., Pinto, Y., … Wolfe, J. M. (2011). Visual attention. Wiley Interdisciplinary Reviews: Cognitive Science, 2(5), 503-514. doi:10.1002/wcs.127
[v] Kuhn, G., & Land, M. F. (2006). There's more to magic than meets the eye. Current Biology, 16(22), R950-R951. doi:10.1016/j.cub.2006.10.012
[vi] Drew, T., Võ, M. L., & Wolfe, J. M. (2013). The Invisible Gorilla Strikes Again. Psychological Science, 24(9), 1848-1853. doi:10.1177/0956797613479386
[vii] Rehnquist, W. H. & Supreme Court Of The United States. (1988) U.S. Reports: Graham v. Connor et al., 490 U.S. 386. [Periodical] Retrieved from the Library of Congress, https://www.loc.gov/item/usrep490386/.
Lt. Brian N. O’Donnell (Ret.)
Brian N. O’Donnell retired as a Lieutenant with the City of Charlottesville, Virginia, Police Department. He served as an infantry officer in the United States Marine Corps and served with the Charlottesville police department for 25 years. He has a B.A. in economics from Northwestern University and an M.S. in Criminal Justice from Liberty University. O’Donnell is a 2016 graduate of the University of Virginia’s National Criminal Justice Command College, earned the Advanced Specialist designation by the Force Science Institute in 2018, and became an IADLEST National Certified Instructor in 2020.
O’Donnell has worked in patrol, as a SWAT member, as a detective with a regional narcotics task force, and as a full-time Task Force Officer with the FBI’s Joint Terrorism Task Force. HIs supervisory duties included: patrol Sergeant, patrol Shift Commander, Commander of the Strategic Policing Bureau, and the Training and Firearm’s Units Supervisor.